Inspector Colin Fraser v Natoli [2011] NSWIRComm 77

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Colin Fraser v Natoli [2011] NSWIRComm 77 Hearing dates: 3 March 2011; 12 April 2011 (Written Submissions) Decision date: 10 June 2011 Jurisdiction: Industrial Court of NSW Before: Backman J Decision: 1. In No IC 1084 of 2008, the defendant is convicted of the offence and fined $8,000 with a moiety to the prosecutor. 2. In No IC 1085 of 2008, the defendant is convicted of the offence and fined $8,000 with a moiety to the prosecutor. 3. In No IC 1086 of 2008, the defendant is convicted of the offence and fined $8,000 with a moiety to the prosecutor. 4. In No IC 1084, 1085 and 1086 of 2008, the defendant is to pay the reasonable costs of the prosecutor as agreed or, in the absence of agreement, as assessed. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - offences under s 8(2) by virtue of s 26(1) of the Occupational Health and Safety Act 2000 - pleas of guilty - risk of falling off internal scaffolding - three separate incidents where workers exposed to the same risk on a building and construction site - objective factors - subjective factors - defendant's culpability as a director by reference to culpability of another director of same corporation not prosecuted - defendant's culpability by reference to culpability of other subcontractors prosecuted in relation to the three incidents - capacity to pay a fine considered - totality - orders - penalties imposed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Fines Act 1996 Occupational Health and Safety Act 2000 Cases Cited: Inspector Colin Fraser v Formcom Holdings Pty Ltd and Another [2010] NSWIRComm 114 Inspector Fraser v Karabelas [2011] NSWIRComm 56 Inspector Colin Fraser v Rocco Natoli [2010] NSWIRComm 180 Inspector Green v Camilleri Properties Pty Ltd [2006] NSWIRComm 90; (2006) 152 IR 156 Inspector Jason Andrew Wall (WorkCover Authority of New South Wales) v Lubo Medich Holdings Pty Ltd [2011] NSWIRComm 18 Inspector Jones v James Denson and Anor [2006] NSWIRComm 234 Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 McColl v John Watson Building Services Pty Ltd [2004] NSWIRComm 353; (2004) 137 IR 310 Ahmad v Regina [2006] NSWCCA 177 R v Thompson & Houlton (2000) 29 NSWLR 383 Regina v Stambolis [2006] NSWCCA 56; (2006) 160 A Crim R 510 WorkCover Authority of New South Wales (Inspector Robert Mayell) v D J Gleeson Pty Ltd [2006] NSWIRComm 363 WorkCover Authority (NSW) (Inspector Mason) v Wild Geese Building and Maintenance Group Pty Ltd [2006] NSWIRComm 350; (2006) 157 IR 313 WorkCover Authority (NSW) (Inspector Page) v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 Category: Sentence Parties: Inspector Colin Fraser (Prosecutor) Rocco Natoli (Defendant) Representation: Mr C Magee, of counsel (Prosecutor) Criminal Law Practice Legal Group WorkCover Authority of New South Wales (Prosecutor)